A Bill Of Federalism
by Randy E. Barnett

A detailed proposal to redress the imbalance between state and federal power.

Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism

Whereas Article I of the Constitution of the United States begins "All legislative powers herein granted shall be vested in a Congress of the United States"; and

Whereas the Congress of the United States has exceeded the legislative powers granted in the Constitution thereby usurping the powers that are “reserved to the states respectively, or to the people” as the 10th Amendment affirms and the rights “retained by the people” to which the Ninth Amendment refers; and

Whereas the Supreme Court of the United States has ignored or misinterpreted the meaning of the Constitution by upholding this usurpation;

To restore a proper balance between the powers of Congress and those of the several States, and to prevent the denial or disparagement of the rights retained by the people, the legislature of the State of ________ hereby resolves:

First, that Congress shall call a convention, consisting of delegates from the several States selected by procedures established by their respective legislatures, for the purpose of proposing the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States; and

Second, that any previous memorial for a convention under Article V of the Constitution of the United States by this legislature is hereby repealed and without effect; and

Third, that copies of this memorial shall be sent to the secretary of state and presiding officers of both houses of the legislatures of each of the several states in the union, the clerk of the United States house of representatives, the secretary of the United States Senate, and to each member of the ________ congressional delegation; and

Fourth, that this memorial for a convention is conditioned on the memorials of two-thirds of the legislatures of the several states proposing the exact same language contained in some or all of the following articles, and is to remain in effect unless repealed by resolution of this legislature prior to the memorials of two-thirds of the states being reported to Congress:

Article [of Amendment 1] -- [Restrictions on Tax Powers of Congress]

Section 1. Congress shall make no law laying or collecting taxes upon incomes, gifts, or estates, or upon aggregate consumption or expenditures; but Congress shall have power to levy a uniform tax on the sale of goods or services.

Section 2. Any imposition of or increase in a tax, duty, impost or excise shall require the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately be presented to the president of the United States.

Section 3. This article shall be effective five years from the date of its ratification, at which time the 16th Article of amendment is repealed.

Article [of Amendment 2] -- [Limits of Commerce Power]

The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.

Article [of Amendment 3] -- [Unfunded Mandates and Conditions on Spending]

Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.

Article [of Amendment 4] -- [No Abuse of the Treaty Power]

No treaty or other international agreement may enlarge the legislative power of Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.

Article [of Amendment 5] -- [Freedom of Political Speech and Press]

The freedom of speech and press includes any contribution to political campaigns or to candidates for public office; and shall be construed to extend equally to any medium of communication however scarce.

Article [of Amendment 6] -- [Power of States to Check Federal Power]

Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States, identified with specificity, is thereby rescinded.

Article [of Amendment 7] -- [Term Limits for Congress]

No person who has served as a Senator for more than nine years, or as a Representative for more than eleven years, shall be eligible for election or appointment to the Senate or the House of Representatives respectively, excluding any time served prior to the enactment of this Article.

Article [of Amendment 8] -- [Balanced Budget Line Item Veto]

Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.

Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.

Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.

Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session of Congress following its ratification.

Article [of Amendment 9] -- [The Rights Retained by the People]

Section 1. All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.

Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.

Article [of Amendment 10] -- [Neither Foreign Law nor American Judges May Alter the Meaning of Constitution]

The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.

Mr. Barnett teaches constitutional law at Georgetown Law Center